Turning Lawyers Into Government Spies
When will the first lawyer be
arrested, indicted, and sent to prison for failing to
help the government convict his client?
You can bet it will be soon. Once
Securities and Exchange Commission,
Internal Revenue Service, and U.S. Department of
assault on the
attorney-client privilege, they will rush to make an
example of a lawyer, lest any fail to understand that
their new role in life is to serve as government
informants on their clients.
Just as government bureaucrats
used the terrorist attacks of September 11 to assault
the Bill of Rights and our constitutional protections,
they are now using “accounting scandals” and “tax
assault the attorney-client privilege, a key
component of the
Anglo-American legal system that enables a
defendant, whether guilty or innocent, to mount a
defense against the overwhelming power of the state.
The assault on the attorney-client
privilege began with
Jeremy Bentham, the first modern tyrant, who saw his
role in life as the antagonist of the great English
William Blackstone. Bentham argued that the legal
principles that protect the innocent, enshrined in
English law as
“the Rights of Englishmen,” were no longer needed
and served only to protect criminals.
Bentham thought that Blackstone`s
principles were fine in their day, as they served to
protect the people from the tyranny of autocratic kings.
But now that government was controlled by the people`s
representatives in Parliament, how could the people
Crime control would be easier,
Bentham argued, if police, prosecutors and judges
were free to
torture suspects into confessions, force their
attorneys to rat on them, and preemptively arrest people
who might commit crimes in the future. There was no
power that Bentham did not think government could be
trusted with in order to better serve the public good.
In our days, the Benthamite attack
on the attorney-client privilege was revived by
Assistant Attorney General Stuart M. Gerson, who
declared the 400-member prominent law firm of Kaye,
“an abettor of crime” for not ratting on its client,
Lincoln S&L owner
Charles Keating. The government froze the assets of
the law firm and the personal assets of the 400
partners, an action that coerced the firm and its
partners to hand over a $41 million ransom payment to
Fierce opposition from bar
associations and legal authorities could not prevent the
government from succeeding in this act of robber barony,
despite the fact that Keating had not gone to trial or
been convicted of any offense. The law firm was robbed
for abetting a crime that had not been tried or proven.
Many law-and-order conservatives
fall in with Benthamite views, because they believe with
Bentham that the function of the justice system is to
convict defendants. Many have expressed their distaste
to me of “lawyers who defend criminals.” They overlook
that it is the jury that determines whether the
defendant is a criminal. If we assume that police and
prosecutors are always right, there is no point of a
Police and prosecutors are not
always right. They make tens of thousands of mistakes.
Some experts estimate that there are 200,000 innocent
Americans in prisons. There is a constant flow of
convicted “murderers” and “rapists” being released on
the basis of DNA evidence that proves their innocence.
It would be a sobering event for law and order
conservatives to become caught up in the legal system.
Alexis de Tocqueville
believed that American lawyers would not tolerate
attacks on the attorney-client relationship. But bar
Alfred P. Carlton Jr. has already collapsed, lining
up with the government against his profession and the
presumption of innocence.
The sacking of the attorney-client
privilege can only produce a nightmare. Many white
collar crimes and securities regulations are so vague
and arcane that no one knows for sure what they mean.
Their meanings are usually argued out in settlements or
trials. What will happen now is that any attorney who
fails to guess in advance the regulator`s interpretation
of the regulation can be charged with helping his client
The same holds for “questionable”
tax shelters. It is a matter of interpretation. Any
attorney who fails to anticipate the IRS bureaucrat`s
interpretation becomes an abettor of fraud.
During the administration of
George Bush I, the Benthamite attack on the
attorney-client privilege was revived in force. Now
during the administration of Bush II, lawyers are being
stripped of their protective role and turned into
instruments of government prosecution.
These are the measures of a police
state. Look around, fellow Americans, and recognize the
Benthamite face that the unbridled pursuit of criminals
has placed on your
Paul Craig Roberts is the author with Lawrence M.
The Tyranny of Good Intentions : How Prosecutors and
Bureaucrats Are Trampling the Constitution in the Name
of Justice. Click
here for Peter Brimelow`s
Forbes Magazine interview with Roberts about the
recent epidemic of prosecutorial misconduct.